1988). What the ensuing months have demonstrated is that the executive branch can rely on executive privilege, along with a constellation of doctrines arising out of it, to 187, 192 (C.C.D. Id. at 203233 (concluding that imposing a standard akin to the one governing executive privilege claims would risk seriously impeding Congress in carrying out inquiries to obtain information it needs to legislate effectively). 14,694), Clinton v. Jones, 520 U.S. 681, 704 (1997), United States v. Nixon, 418 U.S. 683, 706 (1974), New York Times Co. v. United States, 403 U.S. 713, 752 n.3 (1971). National Security Privilege Does Not Apply to Boltons Testimony. So, this notion that theres a zone of communications involving the president that are protected is not new with us. [40], Congress's ability to subpoena the president's tax returns was the subject of the federal court case Trump v. Mazars USA, LLP. The Supreme Court ruled 8-0 that Nixon had to produce the evidence because executive privilege, while constitutionally valid, could not be absolute or unqualified. . The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the government. While the papers at stake in Mazars were the President's personal records, the Court concluded that the close connection between the Office of the President and its occupant did not diminish the separation-of-powers concerns at issue, and may have even posed a heightened risk given the records' less evident connection to a legislative task. Id. DeSantis is squeezing the sunshine out of Floridas public records But it left unsettled just how much power the courts have to review claims of privilege to protect what are claimed to be military, diplomatic, or sensitive national security secrets. at 10. It is usually considered to be based upon common law rather than separation of powers, and its history traces back to the English crown privilege (now known as public-interest immunity). Rove's lawyer wrote that his client is "constitutionally immune from compelled congressional testimony. Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold specific information from disclosure based on the existence of a privilege.17 FootnoteSee United States v. Burr, 25 F. Cas. Military Cold War Escalation and Speech Review Policies: Hearings Before the Senate Committee on Armed Services, Nixon v. Administrator of General Services, Cheney v. United States District Court, 542 U.S. 367 (2004), Clinton v. Jones, 520 U.S. 681, 702 (1997), Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress, Senate Select Committee on Presidential Campaign Activities v. Nixon, United States v. Ehrlichman, 376 F. Supp. This development paved the way for a Senate panel vote on whether to advance the citations to the full Senate. Therefore, Washington provided the documents to the Senate but not the House."[7]. Va. 1807) (No. The interest in preserving confidentiality is weighty indeed and entitled to great respect. 1974), was held entitled to access to material in the custody of the President wherein the Presidents decision to dismiss the prosecution would probably have been unavailing. at 504, 545 (Chief Justice Burger and Justice Rehnquist dissenting). 95 (D.D.C. In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege on the fair administration of criminal justice. Recognizing that the public has a right to every man's evidence, the Court has held that the President may be required to testify or produce documents in criminal proceedings when called upon by the courts.14 FootnoteSee Trump v. Vance, 140 S. Ct. 2412, 2420 (2020). 187, 192 (C.C.D. Comp. "It is obvious that the reasons given for these firings were contrived as part of a cover-up and that the stonewalling by the White House is part and parcel of that same effort", Leahy concluded. On July 25, 2007, the House Judiciary Committee voted to cite Miers and White House Chief of Staff Joshua Bolten for contempt of Congress. 1974), National Fedn of Fed. Public disclosure was at issue in 2004 when the Court weighed a claim of executive privilege asserted as a bar to discovery orders for information disclosing the identities of individuals who served on an energy task force chaired by the Vice President.30 FootnoteCheney v. United States District Court, 542 U.S. 367 (2004). During 194749, several major security cases became known to Congress. In 1792, President Washington and the very first Cabinet decided on a policy of producing documents in response to congressional document requests only if the executive considered it in accordance with the public good. Washington continued to follow that policy, and he also did not produce documents when he deemed the request not in accordance with the Constitution. [3] The Court held that there is a qualified privilege, which once invoked, creates a presumption of privilege, and the party seeking the documents must then make a "sufficient showing" that the "presidential material" is "essential to the justice of the case". By requiring the President to turn over recordings of private conversations that he had with his aides, the Courts decision has helped frame how to define executive privilege in judicial setting. In the end, Eisenhower invoked the claim 44 times between 1955 and 1960. When Can the President Claim Executive Privilege? Deliberative Process and Law Enforcement Privileges The House select committee investigating the January 6 riot has issued a number of subpoenas to former Trump administration officials. The earliest American example of executive privilege may be President Thomas Jeffersons claim that he could keep a letter from a military advisor secret from Congress may seek information within the possession of the President, either in effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or in effectuation of its power to impeach the President, Vice President, or civil officers of the Government. Presumably, the opinion recognizes a similar power in the federal courts to preserve the confidentiality of judicial deliberations, cf. Essentially the same decision had been arrived at in the context of subpoenas of tapes and documentary evidence for use before a grand jury in Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. Although the case was remanded on narrow technical grounds, the Court distinguished United States v. Nixon,31 FootnoteAlthough the information sought in Nixon was important to the constitutional need for production of relevant evidence in a criminal proceeding, the suit against the Vice President was civil, and withholding the information does not hamper another branch's ability to perform its 'essential functions. During my time as White House counsel, there was never an objection from the prior president to releasing those materials. When executive privilege is invoked in litigation, the court should weigh its applicability by balancing competing interests. In the two centuries since the Burr trial, historical practice by the executive branch18 FootnoteSee Vance, 140 S. Ct. at 2423 (discussing historical practices of Presidents Monroe, Grant, Ford, Carter, and Clinton). 29 (D.D.C. For many years, all disputes between the President and Congress with regard to requests for information were settled in the political arena, with the result that few if any lasting precedents were created and only disputed claims were left to future argument. See also Tenet v. Doe, 544 U.S. 1, 9 (2005) (reiterating and applying Tottens broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden ). Id. Executive Privilege Does Not Apply While the President is subject to criminal process, the question remains as to the limits on that process. Subsequent presidents continued using that standard, including President Jefferson when he refused to produce documents and testimony for Aaron Burrs impeachment trial. The doctrine of executive privilege was at once recognized as existing and having a constitutional foundation while at the same time it was definitely bounded in its assertion by the principle of judicial review. However, the courts have held that the applicability of the privilege should be decided on a case by case basis by weighing the need for the administration of justice against the need to protect confidentiality. Nearly a half-century after the most influential Supreme Court case involving executive privilege, who can assert the privilege and under what circumstances remains hotly contested. The Courts decision in Nixon v. Administrator of General Services28 Footnote433 U.S. 425, 44655 (1977). Thus, although the Presidents claim of privilege is entitled to deference, the courts must balance two sets of interests when the claim depends solely on a broad, undifferentiated claim of confidentiality. Congress had passed a law to allow the GSA to seize and preserve all President Nixons presidential records. What optionsdoesformer President Trump have to stop that from happening? Executive Privilege, Secrecy in Government, Freedom of Information: Hearings Before the Senate Government Operations Subcommittee on Intergovernmental Relations, 93d Congress, 1st Sess. Do you thinkanything couldor shouldbe done to reform or clarify this area of law? In the most expansive version of the doctrine, Attorney General Kleindienst argued that the President could assert the privilege as to any employee of the Federal Government to keep secret any information at all. The Court refused to extend the heightened-need standard established in Nixon to private records, discussed infra, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors comprehensive access to evidence. Id. Generally, the categories of executive privilege have been the same whether it is Congress or a private individual seeking the information, but it is possible that the congressional assertion of need may over-balance the presidential claim to a greater degree than that of a private individual. The exact parameters of the privilege are still very much in doubt because the overwhelming majority of executive privilege claims have been resolved by negotiation rather than court order. Va. 1807), in which defendant sought certain exculpatory material from President Jefferson.